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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, December 18, 2013

Don't tase me, bro!

I have litigated cases involving tasers. The universal conclusion is that nothing hurts worse than being tased. Have you ever gone to the dentist and the drill hits a spot on the tooth where the Novocain didn't take? Imagine that pain multiplied by 500. Compared to being tased, quick nerve shock from a dentist drill is like a romp in the park with daisies in your mouth on a summer's day. In this case, the guy was tased. He sues the police, but he loses the case.

The case is MacLeod v. Town of Brattleboro, a summary order decided on November 27. Even though the Taser hurts like the devil, the police can use it if they really need to. In this case, after being pulled over for speeding, the plaintiff led the police on a high-speed chase during pre-dawn hours, a chase that placed others in danger. Now, a high-speed chase might not by itself justify the use of a Taser. But when the joyride ended, the the driver was still a danger to the police. Here's how the Second Circuit (Jacobs, Parker and Chin) writes it up:

MacLeod concedes that “the seriousness of his crimes prior to the use of force was not trivial[,]” but he nonetheless claims that the use of force was unreasonable because he had “voluntarily ceased his criminal conduct and was attempting to surrender at the time he was tased[.]” Whatever MacLeod’s subjective intent, the undisputed facts demonstrate that after suddenly speeding away from an investigating officer on “slick,” dark roads at “a rate of speed higher than the speed limit” to evade arrest, he entered into a deserted a parking lot, exited the vehicle, kneeled on the ground, and then–-contravening clear, repeated instructions that he acknowledges he understood–-rose to his feet, turned to face the officers with his hands free and outstretched, and refused to return to the ground. Rising from the ground rather than submitting to arrest exacerbated a “tense, uncertain, and rapidly evolving” situation that threatened the lives of officers, bystanders, and MacLeod himself.

The leading Supreme Court case on excessive force is Graham v. Connor, 490 U.S. 386 (1989), which articulates an "objective reasonableness" test in determining if the police are liable for excessive force under the Constitution. Here, the objective evidence shows that plaintiff did not engage in passive resistance when the chase ended. He continued to pose a danger. The one-time use of the Taser "to subdue an actively non-compliant suspect reasonably believed to be engaged in dangerous criminal activity and who posed a real and imminent threat to the safety of the officers and any bystanders" was reasonable. Plaintiff ignored repeated and clear commands to return to the ground. "This avoided a 'hands-on' situation with an unrestrained, dangerous individual."